Treated-Wood Trash Talk Smackdown
|
In the pending product defamation litigation between treated wood maker Osmose and competitor Viance, Osmose has scored a convincing early victory. Federal Judge Jack T. Camp, presiding in the United States Court for the Northern District of Georgia (Newnan Division), has granted Osmose's motion to enjoin Viance from continuing to publish a broad range of negative statements and conclusions about Osmose's "MCQ" treated lumber.
(Osmose and Viance offer similar, but different, wood treating formulas: Osmose's MCQ, or micronized copper quaternary, uses finely ground particles of copper as a preservative, while Viance's ACQ, or ammoniacal copper quaternary, uses dissolved copper. In general, the ingredients and mode of action of the two competing formulas are very similar, and both products have achieved building code recognition. For a more complete description of new wood treatment formulas, see “The New Preservatives” in the Sep/Oct08 issue of Professional Deck Builder.)
In granting Osmose the requested immediate relief, Judge Camp agreed broadly and pointedly with the fundamentals of Osmose's complaint. Judge Camp found that Viance's critical statements about MCQ were not supported by the studies Viance referred to in published advertising. In his order, he wrote that for Viance to argue publicly that the studies did, in fact, support the critical claims about the Osmose product amounted to consumer deception; he concluded that the Viance statements were likely to cause Osmose irreparable harm, and therefore must cease immediately.
Judge Camp pointed out a number of weaknesses in Viance's study data — noting, for example, the fact that MCQ-treated fence posts tested by one laboratory under contract to Viance were hand-selected by Viance and thus were an unrepresentative sample. The Judge stopped short, however, of enjoining Viance altogether from releasing the data from its studies, insisting only that Viance stop drawing unjustified inferences about the safety of structures built with MCQ lumber, which the Judge agreed with Osmose were unfounded.
From the court order:
"In summary, the Court finds that preliminary injunctive relief is appropriate and the Court GRANTS Plaintiff’s motion for preliminary injunction [#2]. Although Osmose is entitled to a preliminary injunction, it is not entitled to the broad injunction it requests. Accordingly, Defendants, their officers, directors, agents, servants, members, and employees, and all other persons in active concert or participation with them who receive actual notice of this Order, are ENJOINED as follows:
1. Defendants may publish the results of the in-service survey performed by Viance and the field stake tests conducted in Hawaii and Japan.
2. Defendants are enjoined, however, from claiming or implying that those studies demonstrate that structures built using micronized copper-treated wood are unsafe, pose a threat to consumers, or are structurally unsound.
3. Defendants are enjoined from claiming or implying that the studies demonstrate that micronized copper preservatives are defective in general or are less effective than solubalized copper preservatives.
4. Defendants may not draw their own conclusions about what the studies indicate and then attribute those conclusions to the studies themselves unless the data in the studies clearly support such conclusions. Any conclusions attributed to the studies must be stated in the studies themselves or must be readily apparent from the data contained in the studies.
5. Defendants may not indicate or imply that any conclusions or opinions stated in their advertisements concerning the effectiveness of micronized copper preservatives or the safety of structures built with micronized copper-treated wood are verified or endorsed by Timber Products.
6. Defendants may not claim or imply that Osmose’s MicroPro process was not certified as EPP by SCS, or that SCS did not consider life cycle analysis including efficacy analysis in awarding EPP certification to Osmose’’s MicroPro process."
Viance responded to the court order with a press release that attempts to put a positive spin on the news, saying: "Viance is pleased that in the ruling, the Court permits Viance to continue to publish the results of field stake tests and in service surveys." Viance added, "Viance will continue to seek answers to the scientific questions regarding the performance of micronized copper treated wood within the limitations established by the Court."
The lawsuit most likely will now proceed to the question of whether Osmose is entitled to some sort of monetary damages and/or punitive award as a result of the alleged harm to Osmose's reputation caused by Viance's alleged defamation. At this point, it appears that Viance is in a weak position to defend that part of the suit, however — because as a precondition of granting this latest injunctive relief, Judge Camp has already decided, at least provisionally, that Osmose is "likely to prevail" in its claims against Viance.
If you haven't been following the Osmose versus Viance brouhaha, an article from Professional Deck Builder contains a good sumamry, plus links to press releases from both Viance and Osmose. Judge Camp's order may also be worth a read. It starts with a full introduction of the various parties, definitions of various treated wood industry terminology and acronyms, and a concise but complete history of the case to date; then the Judge proceeds to a point-by-point examination of the claims and counter-claims put forward by both parties, with an assessment of the worthiness of each claimed wrong and its supposed justifications.